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eviction rights Archives | Page 4 of 16 | Eviction Lawyers South Africa

Apr 07
0
Legal reasons you can evict a tenant

Legal reasons for eviction

By | Eviction notice, Evictions, PIE, Tenants

Why can you legally evict a tenant?

As a landlord, you have a responsibility to your tenants. Your property may be an income-earning asset to you, but you must never lose sight of the fact that, to your tenants, it is home. Evicting a tenant is not an action you should enter into lightly, not least because it could cost you a considerable amount, both in legal costs and in lost income, should it take you a while to find another tenant. Unfortunately, sometimes the contract between landlord and tenant becomes strained. If you are unhappy with your tenants, there is a process to follow. But first you must have a legitimate reason for seeking an eviction order. What are the legal reasons for eviction?

Complete guide (recommended starting point):

For a consolidated, attorney-written eviction guide (PIE Act procedure, Sheriff service, municipal notice, timelines, costs, urgent eviction, and landlord/occupier “traps”), see:
https://www.sdlaw.co.za/evictions-south-africa/

This is the best page to read first if you want a full process overview before drilling into individual scenarios.

Breach of lease agreement

The rental agreement, or lease, lists the terms and conditions of the tenancy. It provides protection to both landlord and tenant in the event of either party failing to fulfil their contractual obligations. Basically, any breach of the lease agreement by the tenant is a legitimate reason for you to cancel the lease. At this point it is very important that you understand the difference between cancelling the lease and evicting a tenant. Eviction is a legal process that is carried out via court order and the intervention of the sheriff (if necessary). Eviction is not in the hands of the landlord. See Eviction – how does it work? for an explanation of the proper procedure. Your lease should have a clause in it detailing the consequences of breaching any of the terms of the lease. What constitutes a breach? There are several circumstances.

Rental arrears

The most common breach is non-payment of rent. It is up to you how much leniency you wish to exhibit. If a tenant is a day or two late with the rent one month and they are otherwise a good tenant, it may be that the bank has made a mistake or some other human error has occurred. Tenants often set up debit orders to go out on the 29th of the month, to ensure the landlord receives the rent by the first of the following month. February always causes problems! Give your tenant a call and let them know you haven’t received the rent; this usually sorts the matter. If the rent is still not paid, or if you have experienced repeated incidents of this nature with no explanation and the rent is now in arrears, your tenant is in breach of the lease agreement. You are legally entitled to start eviction proceedings.

Illegal activities

If you discover that your tenant is engaging in criminal behaviour, this is a reason to start the eviction process. This might involve harbouring and/or selling stolen goods; dealing drugs, including cannabis (remember possession of cannabis is legal for personal use, but selling it is not); or using the premises for sex work (whatever your views one way or the other, sex work is still illegal in South Africa). The difficulty comes in proving your suspicions. You cannot claim a breach of the lease on a hunch. But don’t take the law into your own hands. If you have reason to suspect a crime is being committed, report it to the police and let them handle it. Only once you are certain your tenant is carrying out illegal activities may you begin the eviction process.

End of the lease agreement

Most lease agreements run for one year, occasionally two years, less commonly six months. At the end of the lease period, there is usually an option to renew, but it is not compulsory that you extend the lease. You may have decided to sell the property or move back in. If your tenant continues to occupy the property after the lease has expired or been terminated, and you have given notice according to the lease agreement and legislation, the tenant is now an illegal occupier and is required to vacate the property. If they don’t leave of their own accord, you may have to go to court to start the eviction process.

Violation of the lease terms and condition

If your tenant is in violation of the terms you have agreed other than rent, this constitutes a breach of the lease agreement, just as non-payment of rent does. The same process should be followed. In the first instance, speak to the tenant informally about your concerns and ask them to rectify the matter. If this does not work, send a letter notifying them that they are in breach and giving them a time frame (determined by legislation) to put things right. If they fail to do so, you are entitled to start the eviction process. Violations include pets on the property when the lease does not allow pets; excessive noise (i.e., nuisance complaints); unauthorised or excessive numbers of occupants (i.e., the property is being used as a commune when the lease specifies a maximum of e.g. four inhabitants; subletting without permission, or use of the property for purposes other than indicated in the lease (i.e., running a retail business from a non-commercial property).

Health and safety issues

It’s unusual, but occasionally tenants violate health and safety rules, putting themselves and neighbours at risk. A case arose a few years ago of a mushroom farm whose compost was causing such noxious odours that neighbours took the farm to court (see Nuisance law – when an odour mushrooms out of control). In this case, the farm was owned and not rented and the court case involved nuisance law rather than eviction. Had the offenders been tenants, the landlords would also have had a case against them.

Property damage

Most leases have a clause about the respective responsibilities of landlord and tenant, usually divided between maintaining the fabric of the building, which is the owner’s responsibility, and keeping the property generally clean and well maintained, which is the tenant’s duty. If the occupant is negligent and fails to reasonably maintain the property or advise the owner of structural problems, the landlord can seek eviction. For example, if the roof is leaking and water ingress is causing damage to walls, and the tenant does not notify the landlord, this is neglect. If the tenant accidentally or willfully breaks fixtures and does not repair them, this is damage. The damage must be significant for there to be grounds for eviction, and there must be evidence (i.e., photos).

Eviction procedure

Before undertaking a formal eviction process, you must send notice to the tenant informing them of the breach of the lease agreement, with specific reference to the clause they have violated. Give your tenant a reasonable chance to put things right (see Letter of demand). Inform them that only if no action is taken in that time will you cancel the lease. We can draft the letter and send it on your behalf. Many tenants will take a lawyer’s letter more seriously than one from the landlord alone.

Contact us

At Simon Dippenaar & Associates we are specialists in property law. We know rental housing legislation and the Consumer Protection Act inside out and we act for both landlords and tenants, so we know the challenges faced by both parties. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on letters of demand or the eviction process.

Apr 03
0
How to defend against eviction

Eviction – how to defend against eviction by your landlord

By | Appeal of an eviction order, Eviction notice, Evictions, Rental Housing Act

You are not helpless – you can defend yourself

Your home should be your castle, or at least your sanctuary. It is where you feel safe, even when the world outside your door is battering you. It is where you share happy – and sad – times with your family. What happens when your home is threatened, when your landlord warns you they are about to serve you with an eviction order? How do you defend against eviction? Just as your landlord must follow a defined procedure, there is also a process you can follow to fight the eviction.

Eviction procedure

Firstly, the eviction procedure is a lengthy process that gives you ample opportunity to put things right before the landlord goes to court to secure an eviction order. With a residential property lease, once there is a breach of contract, for example non-payment of rent (the most common reason for eviction), the landlord is entitled to give notice of their intention to cancel the lease and evict you. When you receive this notice you have a period of time in which you can rectify the breach, i.e., pay the rent arrears. If you are in financial difficulties and are unable to pay all the rent owed, we recommend you talk to your landlord and try to negotiate a payment plan. Most landlords are reasonable and good communication is the solution to many problems. However, If the landlord has given this written notice and the notice period has expired and you have made no payment, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period.

Once a notice of cancellation has been sent and the notice period has expired, the court process may begin, through the service of summons by the Sheriff. You then have 10 days to defend the summons by filing and serving a Notice of Intention to Defend. 

Trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances. It needs to be convinced that the eviction is just and equitable. The court will hear your arguments and those of the landlord, via affidavits. If you are in breach of your lease and you have not rectified the breach, i.e., if the landlord’s intention to evict you is lawful, it is up to you to raise special circumstances to defend your case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction.

It is vital that you attend your court hearing. If you do not appear in court, your eviction will be considered unopposed and you will not be able to defend against eviction, even if you have filed a Notice of Intention to Oppose.

Grounds for defending against eviction

If you believe the eviction is unlawful – your landlord does not have a good reason to evict you – then you must oppose the eviction and give evidence as to why you believe the action is unlawful. For example, provide proof of payment for your rent. Even if your payment was late, if you rectified the breach within the specified time frame your landlord does not have grounds to evict you.

If the eviction is lawful, but eviction would negatively impact your health or wellbeing due to personal circumstances, you can defend against eviction on these grounds. For example, you may have mental health issues or you may be undergoing treatment for illness and the disruption of moving would be deleterious to your health. Or you may have no alternative accommodation and you need government-provided Emergency Alternative Accommodation. You can oppose your eviction for this reason. 

In both of these cases, if you are successful in opposing your eviction, it is likely the outcome will be a stay of the eviction order, to grant you more time to find alternative accommodation (or until your health improves if your opposition is on health grounds). If you are in breach of your tenancy agreement and the eviction is lawful, the judge is unlikely to simply rule against the landlord and in your favour. There is more likely to be some accommodation of your circumstances, as our Constitution guarantees everyone the right to housing.

Legal representation

You have the right to be represented by an attorney, and it’s a good idea to exercise that right, as a skilled lawyer has experience and knowledge of the judicial system you do not have. Eviction is a civil matter, and the state will not provide a lawyer automatically if you cannot afford one. However, you can request a postponement from the judge so you can find legal representation. You may seek assistance from Legal Aid or a university law clinic.

Legal costs

If you defend against eviction and you lose your case, you may be liable for your landlord’s legal costs. In practice, the court is unlikely to order you to pay costs if you are on a low income and have a valid reason for opposing the eviction.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an opposed eviction or any advice on the eviction process.

Further reading:

Feb 06
0

Land occupiers voice desperation over ‘threats and intimidation’

By | Eviction news, Homeless

Reprinted from iol.com, by Nomzamo Yuku – 2023-02-04

Cape Town – The Khoisan community claiming to be the original land owners of Knoflokskraal in Grabouw and Klutjieskraal in Wolseley, say government is pushing them beyond their limits with illegal evictions and threats.

They spoke following a reported attack by security members deployed at the Knoflokskraal, who allegedly ordered a resident to vacate his home after he attempted to expand his property, last month. They said the security team was accompanied by police officers and that after failing to give the residents a court order for the eviction, they allegedly destroyed the extended structure and told them they would be back to order them to leave their homes.

The two informal settlements were allegedly established two years ago when many say they lost their incomes and could not afford to pay rent anymore and invaded unoccupied land. The two pieces of land belong to the National Department of Public Works, and there have allegedly been illegal evictions ever since.

“We can’t live like this anymore. These people do as they please to us any time they want, threatening to destroy our homes. We fought this battle last year and just when we thought it is over they come again. If it wasn’t for the community I would be homeless. Our only defence was to demand the court order of which they couldn’t provide. We want the the municipality and the department of public works to stop this. We are not criminals, we can’t live in fear every day of our lives,” said Adnaan Backett, 58.

Patricia de Lille, Minister of the national Department of Public Works and Infrastructure said: “The occupants were restricted from building new structures on the properties as per the Containment Order that is currently in place.”

Provincial police spokesperson Lieutenant Colonel Malcolm Pojie confirmed that police attended to the matter.

The incident angered the Khoisan community as the Klutjieskraal dwellers, who witnessed homes destroyed until January 28, recalled how the disabled and sick Christopher Steyn, 60 , was left homeless in December 2022, when structures were illegally destroyed without a court interdict. The community opened cases with police against the law enforcement security company, which they say, was in vain.

“I couldn’t believe it when I heard they attacked residents again in Knoflokskraal. Our case is not resolved yet, there’s been no feedback and my fear is that if they do it that side, they usually come for us too. The communities were started almost at the same time and it’s no secret that they’re being targeted. But where must we go if they don’t give us land. As sick and disabled as I am, I’ll defend my rights to be on this land if I have to. Our people, all over the country are victims but yet are not provided with basic needs, where must they live? Government must stop these evictions,“ Steyn said.

Pojie confirmed that Wolseley Police are investigating cases of malicious damage to property.

He said police are tasked with safeguarding the sheriff of the court and are not involved in the demolition of any structures, “nor the intimidation of such. The local authority usually appoints a company to execute the demolition of illegal structures as per court order or interdict.”

Meanwhile, Andy Wynard, community leader at the Knoflokskraal insettlement said authorities were quick to respond and attack people but disregard important issues such as service delivery. He said public works needed to grant permits to the municipalities to provide services instead of fighting them over the land.

“Give dignity to the people, don’t victimise them. Our youth is tired of this…We don’t want to protest or be violent,” he said.

“We can’t have this in our country, our soil and our inheritance,” concluded Yulanda Wakefield, the chairperson of the Klutjieskraal Core Group, saying in last month alone, about eight homes were demolished with the last incident on January 28.

De Lille said there was no eviction order against the said properties. She said the future of the property has not yet been determined since the lease with the department of Forestry, Fisheries and the Environment expired.

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you are concerned about unlawful eviction or if you need advice on the eviction process.

Further reading: